An Army Captain Takes Obama to Court Over ISIS Fight

[MikeWB]

WASHINGTON — A 28-year-old Army officer on Wednesday sued President Obama over the legality of the war against the Islamic State, setting up a test of Mr. Obama's disputed claim that he needs no new legal authority from Congress to order the military to wage that deepening mission.

The plaintiff, Capt. Nathan Michael Smith, an intelligence officer stationed in Kuwait, voiced strong support for fighting the Islamic State but, citing his "conscience" and his vow to uphold the Constitution, he said he believed that the mission lacked proper authorization from Congress.

"To honor my oath, I am asking the court to tell the president that he must get proper authority from Congress, under the War Powers Resolution, to wage the war against ISIS in Iraq and Syria," he wrote.

The legal challenge comes after the death of the third American service member fighting the Islamic State and as Mr. Obama has decided to significantly expand the number of Special Operations ground troops he has deployed to Syria aid rebels there.

Mr. Obama has argued that he already has the authority he needs to wage the conflict against the Islamic State under the authorization to fight the perpetrators of the terrorist attacks of Sept. 11, 2001, enacted by Congress shortly after the attacks.

That argument is controversial because the Islamic State is at odds with the current leadership of Al Qaeda and its affiliate in Syria, the Nusra Front. Critics contend that the administration is stretching the Sept. 11 authorization too far by applying it to an organization that did not exist in 2001 and that operates far from Afghanistan.

The administration has countered that its position is legitimate because the Islamic State used to be a Qaeda affiliate in Iraq during the Iraq war. In an April 2015 speech, Stephen Preston, then the top Pentagon lawyer, argued that the fact that Al Qaeda splintered after the death of Osama Bin Laden did not mean that the authority to keep fighting each successor faction came to an end.

Administration officials have also said the fight against the Islamic State is covered separately by the 2002 authorization President George W. Bush obtained from Congress for the invasion of Iraq, although they are not relying on it.


Capt. Nathan Michael Smith

U.S. Army

The administration has asked Congress to enact new authorization for using military force against the Islamic State, but lawmakers have not acted on that request. They have, however, passed military appropriations bills that earmark funds for the effort against the Islamic State, which could suggest that lawmakers have acquiesced to the executive branch's theory.

Captain Smith's lawyers are David Remes, who has represented many Guantánamo detainees in habeas corpus lawsuits, and Bruce Ackerman, a Yale Law School professor who published a column in The Atlantic last year arguing that the war against ISIS was illegal and that a serviceman ordered to fight in it would have standing to challenge it in court under Vietnam-era appeals court precedents. Mr. Ackerman said Captain Smith reached out to him after reading that article.

"We want to get this back on the agenda," said Mr. Ackerman, calling the precedent Mr. Obama is setting a "turning point" for whether constitutional checks and balances on a president's ability to initiate a new war at his own discretion will survive.

Current and former administration officials have said that during the summer of 2014, when confronted by the Islamic State's rapid conquest of Iraqi territory, Mr. Obama's legal advisers presented him with a choice: he could say that bombing ISIS was part of the existing war, or he could say it was a new war. Each theory, they told him, was defensible, but each had its own downsides.

Mr. Obama decided to go with the first one – that the Islamic State campaign was part of the existing post-Sept. 11 war – because he believed that immediate intervention was necessary to halt a disaster but that the Republican-controlled House of Representatives was too dysfunctional to vote on any war authorization within 60 days.

That was important because the War Power Resolution, a Vietnam-era law, says presidents must withdraw deployments into "hostilities" after 60 days if Congress has not authorized the operation to continue. In 2011, Mr. Obama's air war intervention in Libya, which lasted longer than 60 days without congressional authorization, prompted criticism both inside and outside the administration.

Jack Goldsmith, a Harvard Law School professor who has criticized the administration's use of the 2001 war authorization to cover the Islamic State but who is not involved in the lawsuit, said the case was significant because it could overcome a major hurdle to getting a court to review that theory.

But Mr. Goldsmith said Captain Smith faced many other hurdles, including precedents that suggest that when Congress appropriates money for a conflict it has implicitly authorized it. He also predicted that if a court did rule that the conflict was illegal, Congress would swiftly authorize the fight to continue – perhaps giving it broader scope than Mr. Obama has wanted.

"We're in a terrible equilibrium where Congress doesn't want to step up and play its part in this military campaign and so the president has basically gone forward and done what he thinks he needs to do," Mr. Goldsmith said. "It would be a lot better for everyone, including the president, if Congress got more involved."

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